Earlier this week I attended Restaurant Day at the State Capitol with the California Restaurant Association. It is great to work with restaurant owners and operators in communicating the issues and realities of running a business in California. If you have never participated in meeting with your local, state, or federal legislator, I highly recommend doing so. It is a great learning experience, and even though the legislator may not agree with your position, it is a great process to engage your representative and to support your positions. Given the recent experience, this Friday’s Five focuses on five proposed bills on employment that California businesses must be aware of (and a link at the bottom on how to contact your state representative):

The bill proposes to make employers and their officers personally liable for an additional penalty of $200 per employee, per pay period for wages that are not paid on time. The bill makes it clear that these proposed penalties “are in addition to, and entirely independent and apart from, any other damages or penalties provided for under this code.”

This proposed bill would make it unlawful for an employer to discriminate against a person if the discrimination is based upon the person’s status as a qualified patient or person with an identification card entitled to the protections of the Compassionate Use Act of 1996 or the use of cannabis for medical purposes.

The bill makes the medical use of marijuana a protected disability under state law: “When used to treat a known physical or mental disability or known medical condition, the medical use of cannabis by a qualified patient or person with an identification card, as those terms are defined in Section 11362.7 of the Health and Safety Code, shall be subject to reasonable accommodation, including the use of the interactive process.”

4. AB 3080 (Gonzalez Fletcher) proposes to ban employers from restricting employees from disclosing any sexual harassment settlements and bars the use of arbitration agreements in the employment context.

AB 3080 would prohibit employers from entering into contracts that do not allow the employee from disclosing “an instance of sexual harassment that the employee “suffers, witnesses, or discovers in the workplace.”

SB 1284 would require employers with 100 or more employees to submit a pay data report to the Department of Industrial Relations. The report would need to include information such as the number of employees by race, ethnicity, and sex listed by their job categories, and the number of employees “whose annual earnings fall within each of the pay bands used by the United State Bureau of Labor Statistics in the Occupation Employment Statistics survey.”

There are other employment law bills being debated, but I thought these were the top five that employers should be aware of as of April 2018. Please check back for updates.

I just updated my Facebook settings to prohibit the software company from conducting facial recognition scans on my photos today due to a notification from Facebook that its software would be analyzing my likeness to automatically recognize me in photos posted on Facebook. This was a coincidence because today I spoke at the American Bar Association’s National Symposium on Technology in Labor and Employment Law on the topic of biometrics in the workplace. As I’ve written about previously, Facebook has been sued for violating Illinois’ Biometric Information Privacy Act (BIPA) for the analysis it performs on individual’s images that are uploaded to Facebook, and indeed other companies are dealing with legal issues arising from Illinois BIPA. This Friday’s Five consists of my five ruminations about biometrics use in the workplace.

1.Technology is developing faster than society’s perceptions of privacy and the law’s ability to keep up.

Technology is quickly developing rapidly on biometric gathering and analysis of the information. As reported today, cameras will likely have the ability to gather data to understand how an individual is feeling and thinking. We are not at the point of a Star Trek type of body scanner to determine in an individual is sick or injured, but it is not inconceivable that this will be possible in the near future. Current technology allows the collection of a lot of biometric information that most of the public probably does not know is possible, such as thermo-images, identification by your “ear print,” heartbeats and possibly EEGs. It raises the key question: is your ear print, heartbeat, heat signature, or EEG signals private information?

2.Only 3 states have legislation regarding the collection and analysis of biometric information of individuals.

A bit surprising to me, all but three states allow for the collection and analysis by employers or consumer companies of biometric information without any type of disclosures or notice to individuals. Illinois, Texas and Washington state have statues that require some type of notice and voluntary consent before biometric information is collected by a private company. There is no restriction regarding law enforcement collection of biometric data.

On one hand it is not private – it is publicly shared and information that can be acquired through very unobtrusive means. There does not have to be any contact (except for the EEG monitoring – which requires probes placed on the scalp) with the individual to obtain this information. Indeed, this information can often be derived through taking a picture, with nothing more complicated than the camera found on most mobile phones.

On the other hand, the technology being developed can gather more intimate information about people beyond their identity. Thermo-images, EEG scans, and carbon dioxide monitors can gather a lot more information than previously imaginable about an individual’s health and mood. As this technology continues to develop, it will be able to derive even more detailed information about people’s health, propensities to become sick, likelihood of having cancer, or maybe even be able to detect cancer.

3.Biometric information is useful in the employment context.

Employers have already been using biometric information to track employees and for security issues, such as permitting access to certain areas based on fingerprint or retinal scans. Employees are able to share passwords very easily to get around password safeguards, but it is harder (but not impossible) for them to share fingerprints or “earprints” (yes, you can be identified by your earprint, which are more reliable than fingerprints).

In the future, employers may be interested in tracking blood pressure, heartbeats, and the general anxiety level of employees for workers’ safety, workers comp claims, and productivity. To the extent the employee asserts some accident or incident occurred on a certain day, it would be useful to have this biometric information for the same time period. While it would be useful, does it violate an employee’s right to privacy? While employees do have a reduced privacy rights a work as long as the employer provides notice to the employee that they may be monitored, California courts have also been clear in holding that employees do not forfeit all privacy rights while at work.

4.If employers collect biometric information, is it simply creating a database that can be used by other third parties?

My libertarian tendencies cause an uneasy feeling in my stomach when realizing the current capabilities with biometric information. This is partly while I opted out of Facebook’s facial recognition setting mentioned above. I believe that many people have a concern that while an individual may consent that a company or an employer may collect and analyze their biometric information, it is unknown about what may happen to this information in the future. This information is an asset that could be acquired by other companies through company purchases or mergers. This would result in the individual’s biometric information being available to third-parties that the individual never anticipated would have access to the information. There are currently no legal safeguards restricting who has access to biometric information, expect the couple of states mentioned above that have passed legislation on this issue.

5.Once biometric data is hacked, it may be hard to identify people.

Again, I recognize that employers and companies have legitimate uses for biometric information. However, the type of information that is contained in biometric information under current technology and the information that will be able to be gathered by future technology is critical to an individual’s identity. What if the data is hacked and used by a third-party to steal an individual’s identity? How will one be able to prove that they are who they claim to be if their finger print data base has been changed by a hacker? These are issues that will have to be resolved as this technology and area of the law are developing.

My firm is hosting a seminar for business owners, in-house counsel, human resource professionals, and managers to learn about and how to implement best practices at the start of 2018. Plus, get to see the newly renovated Proud Bird and enjoy some light food and drinks during the mixer.

Our attorneys will be speaking about:

New case law developments facing California employers in 2018

Minimum wage increases on state local levels in Southern California and how to plan for the year

New hiring prohibitions – employers cannot ask about prior salary and new restrictions on conducting background checks, so what can employers still ask?

California’s Immigrant Worker Protection Act became effective January 1, 2018. The law, set forth in AB 450, requires, among other items, employers to verify that immigration officials have a judicial warrant or subpoena prior to entering the workplace and for employers to provide notice to employees if there has been a request to review the employer’s immigration documents, such as Form I-9s. The new law puts employers in a difficult situation of having to comply with federal immigration law obligations on one hand and state law requirements on the other, with large penalties that could result for violations of either law. This Fox News report sets out the impending conflict between the Federal government and California:

Now with the fight on immigration issues between the Federal government and California, employers should start reviewing their obligations if Federal immigration officials audit their workplace. This Friday’s Five discusses five issues employers need to understand about the obligations created by AB 450.

1. Employers may not voluntary consent to an immigration enforcement agent to enter any nonpublic areas of “a place of labor” without a subpoena or judicial warrant.

The new law provides that employers cannot provide voluntary consent to an immigration enforcement agent to “access, review, or obtain the employer’s employee records without a subpoena or judicial warrant.” This prohibition does not apply to I-9 Employment Eligibility Verification form and “other documents for which a Notice of Inspection has been provided to the employer.”

2. Employers must give notice to employees of any immigration review of employment records.

Employers are required to post information about any inspections of I-9 Employment Eligibility Verification forms or other employment records conducted by an immigration agency within 72 hours of receiving notice of the inspection. The notice must be posted in the language the employer normally uses to communicate employment-related information to the employee. In addition, the notice must include the following information:

(A) The name of the immigration agency conducting the inspections of I-9 Employment Eligibility Verification forms or other employment records.

(B) The date that the employer received notice of the inspection.

(C) The nature of the inspection to the extent known.

(D) A copy of the Notice of Inspection of I-9 Employment Eligibility Verification forms for the inspection to be conducted.

The Labor Commissioner is required to publish a template for employers to use by July 1, 2018.

3. An employer, upon reasonable request, shall provide an “affected employee” a copy of the Notice of Inspection of I-9 Employment Eligibility Verification forms.

An “affected employee” is an employee identified by the immigration agency inspection results to be “an employee who may lack work authorization, or an employee whose work authorization documents have been identified by the immigration agency inspection to have deficiencies.”

The employer is required to provide the affected employee a copy of the written immigration agency notice that provides the results inspection within 72 hours of after receipt of the notice. In addition, the employer shall also provide written notice of the obligations of the employer and the affected employee arising from the results of the records investigation. The notice needs to relate to the affected employee only and shall be delivered by hand at the workplace if possible and, if hand delivery is not possible, by mail and email, if the email address of the employee is known.

4. Except as otherwise required by federal law, employers cannot reverify the employment eligibility of a current employee at a time or in a manner not required by federal law

Violations of this provision can result in civil penalties up to $10,000. In addition, penalties for failure to provide the notices required under the new law are $2,000 up to $5,000 for a first violation and $5,000 up to $10,000 for each subsequent violation. The penalties will be recovered by the Labor Commissioner.

5. Start planning now.

Employers should review their current policies and practices to ensure compliance with Federal immigration requirements, including all I-9 requirements. In addition, employers should train and designate one executive to ensure that the tight notice requirements set forth in the Immigrant Worker Protection Act are met should the Federal government ask to enter the workplace or seek review of employment records.

AB 450 adds Sections 7285.1, 7285.2, and 7285.3 to the Government Code, and to add Sections 90.2 and 1019.2 to the Labor Code.

Effective January 1, 2018 California employers can no longer ask an applicant for employment to disclose information about criminal convictions. The new law (added as Section 12952 to the Government Code) applies to employers with 5 or more employees. Once an offer of employment has been made, employers can conduct criminal history background checks, but only when the conviction history has a “direct and adverse relationship with the specific duties of the job,” and requires certain disclosures to the applicant if employment is denied based on the background check. This Friday’s Five covers five areas of the new law that California employers should be aware of when hiring employees:

1. Employers may not include on any application for employment “any questions that seeks the disclosure of an applicant’s conviction history.”

2. Employers may not inquire into or consider this conviction history of the applicant, including any inquiry about conviction history on any employment application, until after the employer has made a conditional offer of employment to the applicant.

3. Employers can only research certain areas of an applicant’s background after a conditional offer has been made.

Employers may not “consider, distribute, or disseminate information” relating to any of the following areas when conducting a conviction history background check:

(A) Arrest not followed by conviction, except in some limited circumstances set forth in Labor Code section 432.7.

(B) Referral to or participation in a pretrial or posttrial diversion program.

(C) Convictions that have been sealed, dismissed, expunged, or statutorily eradicated pursuant to law.

4. If an employer intends to deny employment based on the applicant’s conviction history, it must make an “individualized assessment” if the conviction history “has a direct and adverse relationship with the specific duties of the job.

In making his determination, the employer shall consider all of the following:

(i) The nature and gravity of the offense or conduct.

(ii) The time that has passed since the offense or conduct and completion of the sentence.

5. If the employer preliminary disqualifies the applicant based on a conviction history, the employer is required to provide written notice to the applicant.

The notice must contain all of the following items:

(A) Notice of the disqualifying conviction or convictions that are the basis for the preliminary decision to rescind the offer.

(B) A copy of the conviction history report, if any.

(C) An explanation of the applicant’s right to respond to the notice of the employer’s preliminary decision before that decision becomes final and the deadline by which to respond. The explanation shall inform the applicant that the response may include submission of evidence challenging the accuracy of the conviction history report that is the basis for rescinding the offer, evidence of rehabilitation or mitigating circumstances, or both.

The applicant then has five business days to respond to the notice before the employer makes a final decision. If the employee responds within this time limit, and states that they dispute the accuracy of the conviction history report and is in the process of obtaining evidence to support their position, the applicant will have an extra five business days to respond. The employer must consider the information provided by the applicant before making a final decision.

If the employer makes a final decision denying the applicant employment solely or in part because of the applicant’s conviction history, the employer is required to provide a second written notice to the applicant containing the following:

(A) The final denial or disqualification. The employer may, but is not required to, justify or explain the employer’s reasoning for making the final denial or disqualification.

(B) Any existing procedure the employer has for the applicant to challenge the decision or request reconsideration.

(C) The right to file a complaint with the Department of Fair Employment and Housing.

Happy New Year. I started the Friday’s Five articles in the summer of 2014, and the interest in the articles has been more than I expected. I appreciate everyone who has read them and provided comments and feedback. If you have any topics you would like me to address, please let me know. With that said, here is a list of five resolutions for California employers in 2018:

1. Relax – Still need to make sure your employees are taking their meal and rest breaks.

2. Train – All supervisors must be trained to comply with California’s required sexual harassment prevention training for employers with 50 or more employees.

Employers should review their systems to ensure there is a process in place on how to organize and maintain employment information for the required time periods, it is required under the law and can help defend the company should litigation ensue.

A final more bonus resolution:Learn – more by attending my webinars on California employment laws to stay up to date.

In the next month, I will be hosting a seminar on the new laws facing employers in 2018 and what steps should be taken to comply. The date is still to be determined, but drop me an email if you are interested and I make sure you are notified once we set the date and location.

AB 168 was approved by Governor Brown on October 12, 2017 which prohibits employers from seeking or taking into consideration an applicant’s prior compensation and benefits when determining whether to hire the applicant, and in setting the applicant’s compensation and benefits. The new law creates Labor Code section 432.3. This Friday’s Five covers five issues of the new law that employers must understand:

1. The law applies to all employers, regardless of size, effective January 1, 2018.

2. Employers may not rely on salary history information of an applicant in determining whether to offer employment and in determining the about of compensation to offer.

3. Employers may not seek salary history information, which includes compensation and benefits, about the applicant.

4. Upon a reasonable request, an employer must provide the “pay scale” for the position to an applicant.

5. Nothing in the law prohibits employees from voluntarily disclosing salary history to a prospective employer.

California’s state legislature is nearing the end of its term, and employers are beginning to glimpse some of the laws that could apply in 2018. There are multiple proposed bills that prohibits employers’ ability to rely upon or seek information about applicant’s previous wages to set the employee’s pay. This Friday’s Five reviews the current law – California’s Fair Pay Act, the proposed bills on disclosure of wages, and San Francisco’s local ordinance that recently passed.

Existing law generally prohibits an employer from paying an employee at wage rates less than the rates paid to employees of the opposite sex in the same establishment for equal work for work performance that requires equal skill, effort, and responsibility that are performed under similar working conditions. Effective as of January 1, 2017, AB 1676 amended California’s Fair Pay Act, found in Labor Code section 1197.5, prohibiting employers from relying on an employee’s prior salary, by itself, to justify any disparity in compensation. It is important to note the bill was modified to take out language that would have prohibited employers from obtaining an applicant’s prior salary.

This bill has been sent to the Governor’s desk during the week of September 11, 2017 to be signed into law or vetoed. The bill, if signed by the Governor, would require employers with at least 500 employees to calculate the difference between the wages of male and female exempt employees in California by each job classification or title. The employer would also have to do the same for all board members who are located in California. The employer would need to report the difference in pay, which would be published on the Internet by the Secretary of State. Governor Brown has until October 15, 2017 to sign or veto the bill.

San Francisco passed a local law that prohibits employers from asking job applicants to disclose their salary history. It also prohibits employers from considering an applicant’s pay history as a factor in determining the level of pay to offer. The law is effective July 1, 2018, so San Francisco employers have some time to review hiring practices to comply.

With the end of summer quickly approaching, this Friday’s Five (and next week’s post as well) covers broad topics employers should review periodically. Today’s post covers five questions a company operating in California should be asking on a routine basis:

1. Has the company reviewed and updated the employee handbook and related policies?

2. Does your company train supervisors and employees on its handbook and other policies, and does the company standby what it tells employees in these policies?

Legally drafted policies only get your company half of the way there. Companies need to train managers and supervisors about what the policies mean and how they need to be implemented day-to-day. Furthermore, the company needs to follow-through with what it tells supervisors, managers, and employees. For examples, if the company maintains an open door policy, but none of the employees are utilizing the open door policy there could be a problem. One solution is for the company to start pro-actively having open door sessions with employees to discuss their experience at the company (my post next week will discuss what should be asked during these open door sessions).

3. Has the company conducted a review of a local county and city laws that apply?

5. Is there an open line of communication with the employer’s payroll company and have specific wage and hour compliance issues been discussed?

The information that must be listed on employee’s pay stub is detailed, but easy to comply with. A model pay stub published by the State Division of Labor Standards Enforcement can be found here (but note this only lists the state requirements – any other local county or city requirement will also apply). The model pay stubs does not list paid sick leave, which employers must also remember to list on the employee’s pay stub or other writing provided to employees when they are paid.

Many payroll companies do not review the accuracy of the information listed on the pay stubs they generate, and this burden falls on the employer. In addition to the California Labor Code requirements of the information that must be listed on pay stubs, the local requirements for reporting the amount of paid sick time available to employees must also be provided. Employers need to proactively review and discuss these requirements with their payroll companies.